A. Introduction: From Charity to Enablement to Entitlement In the ESCAP region, the background to the development of legislation in support of the full participation and equality of persons with disabilities may broadly be viewed as spanning two phases. The watershed of the two phases is marked by the promulgation of the International Year of Disabled Persons (1981) and the United Nations Decade of Disabled Persons (1983-1992). The declaration of the Asian and Pacific Decade of Disabled Persons (1993-2002) (1) reinforces a growing trend towards equalization that has its roots in the progress made during the United Nations Decade in the ESCAP region. The goals of the Asian and Pacific Decade are "full participation and equality". Until the beginning of the 1980s, persons with disabilities were generally invisible in Asian and Pacific society. They were usually regarded as having only limited possibilities of contributing to the development process. Policies and programmes concerning them focused on the provision of institutional care, medical rehabilitation and allowances. Those measures, although well-intentioned, have tended to reinforce their exclusion from active participation in community life. With the launching of the International Year of Disabled Persons and the United Nations Decade, perceptions concerning persons with disabilities changed. For the first time, the global community agreed upon a set of definitions and proposed measures for action in the field of disability: the World Programme of Action concerning Disabled Persons. (2) That landmark document highlighted the need for promotional measures to realize the goals of full participation of disabled persons in social life and development, and of their equality. Such clarity concerning conceptual approaches toward people with disabilities had a significant effect on the development of legislation concerning this group in the ESCAP region. Underlined in the World Programme of Action is the principle of equal rights for disabled and non-disabled persons. The World Programme of Action states that resources must be employed in such a way as to ensure, for every individual, equal opportunity for participation. Furthermore, it refers to the equal obligations of disabled persons to take part in the building of society. For this, society must raise the level of expectation as far as disabled persons are concerned and mobilize their full resources for social change. The World Programme of Action calls upon Member States to, inter alia,: - Create, through legislation, the necessary legal bases and authority for measures to achieve the objectives; - Assume responsibility for ensuring that disabled persons are granted equal opportunities with other citizens; - Undertake the necessary measures to eliminate any discriminatory practices with respect to disability; - Give particular attention to conditions which may adversely affect the ability of disabled persons to exercise the rights and freedoms guaranteed to their fellow citizens; - Give attention to specific rights, such as the rights to education, work, social security and protection from inhuman or degrading treatment, and examine these rights from the perspective of disabled persons. Thus, with those antecedents, the 1980s witnessed a gradual shift of perception of "the disabled" as "objects of charity" to recognition of the need to enable them to participate in society, to the introduction of proactive measures to protect the entitlements of people with disabilities on an equal basis with non-disabled members of society. This may be summarized as a shift from charity to enablement to entitlement. During the United Nations Decade, links were forged between people with disabilities in the ESCAP region and their peers in other parts of the world. This growing solidarity contributed to the emergence of a global movement of people with disabilities for equal opportunities to participate in society. In the final years of the United Nations Decade, international attention turned increasingly to the issues of full participation and equality. The global consensus reached on the Standard Rules on the Equalization of Opportunities for Persons with Disabilities (3) provided Member States with an international instrument to guide action towards the development and strengthening of legislation in support of full participation and equality (hereafter referred to as equalization legislation). Legislation is a major area of concern in the Agenda for Action for the Asian and Pacific Decade of Disabled Persons. (4) With a view to encouraging national efforts to implement the Agenda for Action, a set of targets and recommendations concerning legislation were among those adopted in 1995 for each area of the Agenda for Action. (5) In the preparation of this publication, the secretariat drew from information contained in the following sources: - Responses to ESCAP questionnaire surveys on: -Legislation in support of improving the lives of people with disabilities in the countries and areas of the ESCAP region (1992); - Status of legislation in support of full participation and equality of persons with disabilities in the ESCAP region (1995); - Participation of self-help organizations of people with disabilities in the development of equalization legislation (1995); - Implementation of the Agenda for Action for the Asian and Pacific Decade of Disabled Persons (1995); - Country reports submitted to the Meeting to Review the Progress of the Asian and Pacific Decade of Disabled Persons, 1993-2002, Bangkok, 26-30 June 1995; - Country papers contained in Asian and Pacific Decade of Disabled Persons, 1993-2002: The Starting Point (ST/ESCAP/1342); - Rehabilitation International Proceedings: 2nd International Conference on Legislation concerning the Disabled, January 16-20, 1978, Manila. In addition to the above, the constitutions of the following ESCAP members were reviewed for provisions pertaining to the treatment of under-privileged sections of society: Australia, China, Democratic People s Republic of Korea, India, Japan, Nepal, Pakistan, Philippines, Republic of Korea, Sri Lanka, Thailand and Viet Nam. ___________________________________________________________________________ (1) Proclaimed on 23 April 1992 by the Economic and Social Commission for Asia and the Pacific at its forty-eighth session, through its resolution 48/3. (2) Adopted on 3 December 1982 by the United Nations General Assembly at its 37th regular session, through its resolution 37/52. (3) Adopted on 20 December 1993 by the United Nations General Assembly at its forty-eighth session, through its resolution 48/96. (4) Adopted on 29 April 1993 by the Economic and Social Commission for Asia and the Pacific at its forty-ninth session, through its resolution 49/6. (5) By the Meeting to Review the Progress of the Asian and Pacific Decade of Disabled Persons, 1993-2002, Bangkok, 26-30 June 1995. ___________________________________________________________________________ B. Main Thrusts and Current Status of Legislation (1) Despite differences in their polities, all constitutions in the ESCAP region guarantee their citizens right to equality and life with dignity. A number of countries in the region have constitutional provisions which call upon the State to accord special treatment to and positive discrimination in favour of the under-privileged sections of society. (2) In consonance with their constitutional mandates, many ESCAP countries recognize the need for legislative support to promote the full participation and equality of people with disabilities. In this regard, it is noteworthy that 31 Governments in the region have joined as signatories to the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region. (3) Legislation in favour of people with disabilities in the ESCAP region may broadly be listed under four categories according to the main thrust of each: welfare; service; enablement; rights. With regard to the legislation reviewed, there is a main thrust in each case. However, particularly in the case of legislation enacted more recently, there are also provisions in the respective laws which cover other thrust areas. For example, while the Magna Carta for Disabled Persons of the Philippines may be viewed as primarily having a rights thrust, there are also a number of enablement provisions which seek to facilitate the participation of persons with disabilities in society. Below are definitions and examples of the four broad categories of legislation concerning disabled persons. 1. WELFARE LEGISLATION (a) Definition Welfare legislation contains provisions for medical rehabilitation, institutional care and disability allowances. Welfare legislation is based on the perceptions that people with disabilities: - Do not have the potential to be productive members of society; - Are primarily recipients of medical rehabilitation and welfare benefits. (b) Examples Examples of welfare legislation include the following: 1. The Social Security Act (1991) of Australia: It provides for the payment of a disability support pension to those people having physical, intellectual or psychiatric impairments, and who are over 16 years of age. 2. Chapter V of the Socialist Constitution of the Democratic People s Republic of Korea: It stipulates the provision of material assistance to citizens who are no longer able to work because of old age, illness or a physical disability. Furthermore, Chapter 8 of the Socialist Labour Law of the same country provides for grants and subsidies to be made available under the State Social Security System to those working people who are temporarily disabled by reason of sickness, injury or disease. In the case of those who continue to be disabled beyond six months, they are entitled to a disability pension under the State Social Security System. 3. The Welfare Law for Persons with Disabilities of the Republic of Korea (amended as Law No. 4719, promulgated on 30 December 1989): It contains enabling provisions concerning medical care, education, employment promotion and efforts for self-support. 4. Welfare legislation of New Zealand, e.g., the 1924 enactment of a special pension for blind persons, the 1936 enactment of an invalid s pension (financial support for persons aged 16 and over who are permanently incapacitated for work), and the Social Security Act (1938) providing for the care and welfare of citizens, including a sickness benefit for loss of earnings through temporary incapacity, as well as invalid benefits for blind persons and those persons permanently incapacitated for work as a result of illness, accident or congenital defects. Also covered by the Act are benefits for minors who have been permanently or seriously incapacitated. 2. SERVICE-ORIENTED LEGISLATION (a) Definition Service-oriented legislation provides a framework for infrastructural and financial support for the establishment, regulation and maintenance of services which are especially designed for persons with disabilities. The services covered by such legislation include those for education, vocational training, employment and rehabilitation. Service-oriented legislation is based on the recognition that people with disabilities: - Have the potential to participate in society; - Need specialized services to live meaningful lives. (b) Examples The following are examples of legislation pertaining to services for disabled persons in ESCAP countries: 1. The Disability Services Act (1986) of Australia: It covers provisions for vocational and social rehabilitation programmes for persons with disabilities. 2. The Mental Health Act (1987) of India: It provides for mental health services; the Rehabilitation Council of India Act (1992): It covers procedures for the registration of rehabilitation professionals and approval of training courses. 3. The Government Regulation of the Republic of Indonesia No. 36 (1980) Re. Social Welfare for the Disabled: It has provisions for the medical and social rehabilitation of disabled persons, to remedy and develop the physical, mental and social abilities of disabled persons so that they can function in society in accordance with their abilities, talent, education and experience. The medical rehabilitation includes health services. The social rehabilitation includes facilities and services for the fulfilment of basic needs (food, clothes, housing), skills development, education, granting of aid, and further development. 4. The Disabled Persons Community Welfare Act (1975) of New Zealand It provides for assistance, including financial support, to disabled persons and their families, as well as private and voluntary organizations, to enable disabled persons to live in the community. 5. Rehabilitation of Disabled Persons Act (1991) of Thailand: It provides for medical rehabilitation, education and assistive devices to be made available to disabled persons through a Rehabilitation Fund. 3. ENABLEMENT LEGISLATION (a) Definition Enablement legislation contains an affirmative action scheme (e.g., subsidies for assistive devices, scholarships for education and vocational training, travel concessions and soft loans) to facilitate disabled persons access to mainstream programmes. Enablement legislation is premised on the view that people with disabilities: - Have, like non-disabled persons, the potential to contribute to the development of society; - Need affirmative action measures to enable them to achieve equality in various aspects of life. (b) Examples The following are examples of enablement legislation in the ESCAP region. 1. Disabled Persons Fundamental Law (Act No. 84, 1970, most recently amended as Law No. 94 of 1993) of Japan: It provides for the adoption and implementation of basic measures for the welfare of disabled persons and the prevention of the causes of disability; the Law for Employment Promotion of Disabled Persons (1960) of Japan: It allows for a quota scheme containing legal requirements for employing a minimum percentage of persons with disabilities, and with provision for the imposition of levies on and payment of incentives to employers; Act on Buildings Accessible and Usable for the Elderly and Physically Disabled (Law No. 44 of 1994) of Japan: It contains minimum and recommended standards to be adhered to by owners of public buildings, to encourage the construction of such buildings which will be accessible for and usable by elderly and physically disabled persons. 2. The Law of the People s Republic of China on the Protection of Disabled Persons (1990): It includes provisions for, inter alia, the rehabilitation, education, training, employment and cultural life of persons with disabilities, as well as the creation of conditions which are conducive to their participation in society. A distinct feature of this Law is the delineation of the responsibilities of the State, people s government at all levels, society, the national federation of disabled persons, guardians and family members, as well as the obligations of disabled persons. 3. The Disabled Persons (Employment and Rehabilitation) Ordinance (1981), Pakistan: Its provisions cover the training and employment of disabled persons. They also include the establishment of a national council and provincial councils for the rehabilitation of disabled persons. The membership of the national and provincial councils is composed of representatives of diverse ministries and divisions, the administrator of Zakat (religious tax imposed on persons who have an income and used for charity), bodies for social services, and persons engaged in the welfare of disabled persons. 4. Batas Pambansa Bilang Act No. 344 (Accessibility Law of 1984), Philippines: It contains mandatory provisions for public and private buildings and related structures, streets, highways and public utilities, including transport systems, to be made usable by persons with disabilities; the implementing rules and regulations for this Law contain minimum design criteria for accessibility. 5. The Special Education Promotion Law (1977) of the Republic of Korea (most recently amended as Law No. 4716, promulgated on 7 January 1994): It contains provisions for the establishment and maintenance of special education institutions for diverse disability groups and the promotion of their access to mainstream education programmes; Act relating to Employment Promotion, Etc., of the Handicapped (Law No. 4219, promulgated on 13 January 1990), Republic of Korea: It contains provisions for the establishment of employment promotion agencies and a quota scheme requiring all employers to hire persons with disabilities to a level equivalent to at least two per cent of their work force. 6. Chapter XI on "Special Provisions concerning Young Workers and Other Categories of Workers", Section III on "Employment of the Disabled", Labour Code of the Socialist Republic of Vietnam (1995): It provides for employment promotion and services to be made available to disabled persons. 4. RIGHTS-BASED LEGISLATION (a) Definition Rights-based legislation seeks to protect persons with disabilities from discrimination on the ground of disability and to provide adequate safeguards against their victimization. Such legislation establishes procedures for compensation to be paid to the victims of discrimination. Rights-based legislation emerges from recognition of the civil rights of people with disabilities; in particular, it recognizes that: - People with disabilities have the same citizenship and civil rights as non-disabled persons; - The basic right of people with disabilities to a life with dignity must be protected by the law. (b) Examples The following are examples of rights-based legislation in the ESCAP region: 1. The Federal Disability Discrimination Act (No. 135 of 1992) of Australia: It provides for protection from less favourable treatment on the ground of disability in the matters of access to education, training and employment, public facilities, rehabilitation services and all other programmes. 2. Disability Discrimination Ordinance (No. 86 of 1995) of Hong Kong: It seeks to protect persons with disabilities from exclusion on the ground of disability in the matters of education, vocational training and employment, use of public facilities and utilities, accommodation, as well as goods and services. 3. Magna Carta for Disabled Persons (Republic Act No. 7277 of 1991): It extends protection over the civil and political rights of people with disabilities by ensuring their equal access to education, vocational training, employment, and the election process. Significant in the Act is a clause on reasonable accommodation. The clause allows employers a degree of flexibility in improving existing facilities, modifying work schedules, policies, rules and regulations, and in providing auxiliary aids and services. (4) The Act also gives special consideration to marginalized disabled persons. (5) A range of economic support and social service measures are stipulated for this group of disabled persons. 5. LEGISLATION IN PROCESS In addition to the above examples of legislation which have already been enacted, a number of countries in the ESCAP region have initiated action towards the development of legislation concerning disabled persons. Below are examples of such action. The Ministry of Health and Education, Royal Government of Bhutan, plans to submit, in March 1996, a proposal to the National Assembly (6) for its approval of action by the Ministry of Home, in cooperation with other concerned Ministries, to embark on the development of legislation for people with disabilities. The Ministry of Social Affairs, Labour and Veterans Affairs of Cambodia has established a Task Force to oversee the development of a national rehabilitation pan. The Cambodian Disabled People s Organization, a member of the Task Force, has been assigned to collect examples of legislation from developing countries for review and further action. With the recent political changes in Cambodia, the Ministry has recognized that there is a need to revise three existing laws that had been passed between 1990 and 1992. Those laws concern the training and employment of disabled persons, and the organization of the former Ministry of Social Affairs and Invalids. Bangladesh and Lao People's Democratic Republic which do not as yet have legislation in support of disabled persons, have initiated the formulation of national policies to promote the integration of this marginalized group in society. The Bangladeshi policy is comprehensive in scope. Its measures include those for ensuring the rights of persons with disabilities, equalizing their opportunities, income maintenance, social security and accessibility. It is awaiting the approval of Parliament. The National Committee for Persons with Disabilities of the Lao People's Democratic Republic will draft legislation for protecting the rights of persons with disabilities and submit it to the National Assembly for approval. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Bill (1995) has recently been introduced (7) in the Lok Sabha (House of People or the Lower House), Parliament of India, for examination by a Parliamentary Standing Committee prior to debate. The Bill seeks both to protect the rights of people with disabilities and to provide enabling measures to promote their all-round inclusion in community life. A number of actions taken by the Government of Malaysia are indicative of its interest in legislation concerning persons with disabilities. In 1993, it hosted the Consultative Expert Meeting on National Disability Legislation for the Asian and Pacific Region at Kuala Lumpur. In 1994, it passed the Amendments to the Uniform Building By-Laws (1984) under the Street, Drainage and Building Acts. This resulted in the Malaysian Standard Code of Practice for Access for the Disabled to Public Places. Many legal provisions that are restrictive to people with disabilities are being studied. Consideration is being given to the development of a law providing for minimum basic rights of disabled persons. Similarly, work on the enactment of legislation to protect the rights of people with disabilities is under way in Sri Lanka. A technical committee has been constituted to work on that legislation. A draft Bill has been prepared and is awaiting confirmation by the legal authority prior to submission to Parliament for ratification. Thus, several Governments in the ESCAP region have made progress in extending statutory support to people with disabilities. That statutory support encompasses welfare measures and provisions for the creation of a social and physical milieu which is conducive to their participation in society, and the protection of their entitlements as citizens. ___________________________________________________________________________ (1) In the preparation of this and the following chapters, the secretariat used inputs contained in a manuscript contributed by Mr. S.K. Rungta, Chairperson, Working Committee, South Asian Network of Self-help Organizations of People with Disabilities, and General Secretary, National Federation of the Blind, India. Mr. Rungta, a lawyer who practices in the Supreme Court of India and the High Court of Delhi, has been closely associated with the formulation and revision of India s "The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Bill, 1995". (2) For example: Articles 15(4) and 16(4), Constitution of India; Article 17(F), Constitution of Nepal; Articles 16 (Point VII) and 17 (Point VIII), Constitution of Pakistan; Article 12(4), Constitution of Sri Lanka; Articles 28(4) and 30(3), Constitution of the Republic of Korea. (3) Adopted on 29 April 1993 by the Economic and Social Commission for Asia and the Pacific at its forty-ninth session, through its resolution 49/6. (4) Auxiliary aids and services include devices, services and actions that facilitate the participation of people with disabilities in learning, work and various aspects of socio-economic-political life; the services and actions include those of qualified sign language interpreters, readers and personal assistants. (5) Marginalized disabled persons are those who lack access to rehabilitative services and the opportunities to be able to participate fully in socio-economic activities and who have no means of livelihood and whose incomes fall below the poverty threshold. (6) The highest national policy- and decision-making body in Bhutan; it is chaired by His Majesty the King of Bhutan. (7) Source: Lok Sabha Proceedings of 26 August 1996. ___________________________________________________________________________